Fri, 13 Feb 2009

Come Monday, before taking a photograph of a police officer, you'll have to
mind read whether he or she will suspect the information could be
useful to a terrorist. If your mind reading technique is not good, then
you could be arrested and end up in the slammer for up to ten years.

Photographers - whether amateurs or professionals - are all too
commonly stopped and searched on suspicion of conducting hostile
reconnaissance. According to Superintendent David Hartshorn, of the Metropolitan
Police Public Order Branch, there have been many arrests of photographers but no
conviction yet. Since the end of last year, the police have insisted that 'the
Terrorism Act 2000 does not prohibit people from taking photographs or digital
images', but from next week the police recommends that 'it is advisable
that photographers are careful when taking photographs of police officers'.

(1) A person commits an offence who— (a) elicits or
attempts to elicit information about an individual who is or has
been— (i) a member of Her Majesty's forces, (ii) a member of
any of the intelligence services, or (iii) a constable, which is of a
kind likely to be useful to a person committing or preparing an act of
terrorism, or (b) publishes or communicates any such information.

(2) It is a defence for a person charged with an offence under this section
to prove that they had a reasonable excuse for their action.

The Terrorism Act 2000 does
not prohibit people from taking photographs or digital images
in an area where an authority under section 44 is in place. Officers
should not prevent people taking photographs unless they are in an area
where photography is prevented by other legislation.

If officers reasonably suspect that photographs are being taken as part
of hostile terrorist reconnaissance, a search under section 43 of the Terrorism
Act 2000 or an arrest should be considered. Film and memory cards may be seized as
part of the search, but officers do not have a legal power to delete images or
destroy film. Although images may be viewed as part of a search, to preserve
evidence when cameras or other devices are seized, officers should not normally
attempt to examine them. Cameras and other devices should be left in the state
they were found and forwarded to appropriately trained staff for forensic
examination. The person being searched should never be asked or allowed
to turn the device on or off because of the danger of evidence being
lost or damaged.

The Counter Terrorism Act 2008 section 76 extends further the
already dangerous section
58 (collection of information) of the Terrorism
Act 2000. If you're not familiar with this section, its impact is made only too
clear in this article excerpt by lawyer Gareth Peirce:

Defendant after defendant has discovered that a long-forgotten
internet search has left an indelible record sufficient for a
conviction under the profoundly disturbing section 58 of the Terrorism
Act 2000, which allows prosecution for simple possession of an item
likely to be useful to terrorists, and carries a sentence of up to 10
years' imprisonment. While the record of use remains permanently, no
equivalent reconstruction is available or even required of the mindset
of the user at the time. The common elements in each conviction have
now become familiar: the defendant had not the slightest idea that such
possession was inconsistent with the right to freedom of thought; was
not remotely involved in any terrorist activity; and was Muslim.

Now that you have
some understanding of how section 58 of the TA 2000 has been (mis)used,
how do you think the police will want to use the new powers brought in
by section 76? No need to guess. Just check your photo collection and
see if you have any picture that has a police officer in it, or even a
former officer. Or check whether
you've published a friend's picture on your blog or website that
include an police officer in the frame. Imagine yourself, or whoever
took the pic, about to take the same picture next week. Now read the
helpful relevant FAQ
on the Police National Legal Database:

Question Q717

I want to take some photos in public, is it now illegal?

Answer

It is not
illegal to take photographs or video footage in public places
unless it is for criminal or terrorist purposes.

There will be places where you have access as a member of the public,
but will have to ask permission or may be prevented altogether. These
could include stately homes, museums, churches shopping malls, railway
stations and council/government buildings. You need to check the
situation out on a case by case basis.

The country is in a heightened state of alert (and will be for many
years) because of potential terrorist attacks. So called 'soft targets'
are particularly vulnerable. Security staff, the general public and
police are much more aware of anyone taking photographs and you may be
approached by someone, such as the police, when you are taking
photographs near or in potential targets. Generally the police cannot
seize the camera or memory card unless you are committing an offence or
suspected of terrorist activity.

The taking of photographs of an individual without their consent
is a civil matter. Taking a photo of a person where they can reasonably
expect privacy could be a breach of privacy laws. The other issue to
consider is what you plan to do with the photograph afterwards. If you
intend to publish it in any way (on the internet, in a book or at a
gallery) then you would need the person's permission.

From Monday 16th February
2009 there is a new offence concerning
eliciting information about members of armed forces, police officers
and intelligence services which is likely to be useful to a person
committing or preparing an act of terrorism, or publishes or
communicates information of that kind. does not state that the person
who gets the information has to use the information for terrorism
purposes, just that the information is likely to be useful to a
terrorist.

There is a defence of reasonable excuse under this section
and it would be for the suspect/defendant to raise this matter.

It is advisable that
photographers are careful when taking photographs
of police officers, the intelligence services or members of the armed
forces. If an officer suspects that the information gained by the
person could be useful to a terrorist, then the photographer could find
themselves arrested for this offence and the camera seized, albeit may
only be until the facts are clarified. [emphasis added]

Any photographer may end up on the wrong end of this
law. An area likely to be strongly impacted is documenting dissent
or any behaviour the police is not keen to be witnessed and
reported. And this law is not limited to photographers.